By Cindy Rank

Yes, the “Cancer Creek” bill, vestige of the past, has resurfaced —- this time it has blurred the vision of enough West Virginia legislators to float them blithely along in murky waters to the final approval of the bill.

When the “Cancer Creek” Bill appeared some 25 years ago during the time I walked the halls of the legislature as one of the Environmental Council lobbyists, the Apple Grove Pulp and Paper Mill proposed for Mason Count loomed large and dioxin pollution was uppermost in the minds of many and a hot news item.

Industry, through the voice of the Manufacturers Association, the Chamber of Commerce, the coal and gas associations, had proposed a new way of measuring the capacity of a stream to bear the brunt of increased levels of carcinogens discharged from various industrial facilities and activities. The particular discharge from the Pulp Mill was the obvious impetus for the bill and the fear of increased amounts of carcinogens such as dioxin threatened people up and down the Ohio River Valley.

Opposition to the bill ranged from intensely serious scientific discussions to hilarious street theater parades of persons in larger than life costumes of deformed fish. Caution ruled the day and the final outcome was the defeat of the bill.

Since then, industry has routinely pushed WVDEP (West Virginia Department of Environmental Protection) to adopt harmonic mean as agency policy.

I’m not alone in my belief that there is little substance to support the claim that using the more lenient average measurement will attract more industry.  Asked on many occasions to name any business that has NOT come to the state because regulators use the lowest flow of streams measurement of 7Q10 instead of an average harmonic mean to calculate the pollutant limits for discharge permits, industry has failed to provide a single example these past 25 or so years.

However, persistence and politics have finally paid off for industry …. This year the Manufacturers’ Association and other industry groups convinced the legislature to bypass West Virginia Department of Environmental Protection rulemaking and advance their own version of the Cancer Creek Bill.  Despite yeoman efforts by E-Council and in particular WV Rivers Coalition and Downstream Strategies, the legislature approved “Harmonic Mean” as the measurement our state regulatory agency (WV DEP) is to rely on for determining the limits for pollutants allowed to be discharged.

This bill will not change the numeric water quality criteria values for carcinogenic pollutants, but it does change how effluent limits are calculated and will allow for an increase in the total mass of pollutants that can be discharged. These changes can potentially worsen overall water quality. Furthermore, because the less conservative “harmonic mean” model assumes more water available for dilution, the discharger runs a greater risk of exceeding instream water quality criteria far downstream from discharge locations.

But wait — It wasn’t enough to lessen regulation of the discharge of carcinogens that can have a long term, cumulative impact on ones heath.

No, no …. at the behest of industry the legislature went one step further and has included this less restrictive average stream flow measurement for determining the regulated discharge of non-carcinogens as well (e.g. iron, manganese, aluminum, etc.)

The irony here – especially for anyone who has been involved in negotiations with industry about changes in any type of regulation – is that comparison with policies of surrounding states was ignored as far as non-carcinogens was concerned.

Normally the bleating of industry cries out for a summation of what our neighboring states do so WV doesn’t over regulate, doesn’t end up being too restrictive and risk too much competition from folks across state lines.

In this instance while neighboring states use some variation of the harmonic mean average calculation for carcinogens, most relegated non-carcinogens to a 7Q10 or some variation of that low flow measurement.  So now West Virginia has outdone our neighbors in the race to the bottom!

— Go figure.